OKEBAYODE ABORODE v. CHIEF AMUSA TORIOLA AFOLABI & ORS
(2011)LCN/4421(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of March, 2011
CA/I/164/09
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 8 RULES 18 AND 20 OF THE COURT OF APPEAL RULES 2007 AS IT RELATES TO WHEN A RESPONDENT MAY MOVE THE COURT TO DISMISS AN APPEAL UPON THE FAILURE OF THE REGISTRAR AND THE APPELLANT TO COMPILE AND TRANSMIT THE RECORDS AND GROUND UPON WHICH SUCH DISMISSED APPEAL MAY BE RESTORED
Order 8 Rules 18 provides- “If the Registrar has failed to compile and transmit the records under Rule 1 and the Appellant has also failed to compile and transmit the records in accordance with Rule 4, the Respondent may by Notice of Motion move the court to dismiss the Appeal” Order 8 Rule 20 provides:- “An Appellant whose Appeal has been dismissed under this Rule may apply by Notice of Motion that his appeal be restored any such application may be made to this court who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.” PER SIDI DAUDA BAGE, J.C.A.
DUTY OF THE COURT: FACTORS THE COURT WILL CONSIDER IN EXERCISING ITS DISCRETION ON WHETHER OR NOT TO GRANT AN APPLICATION O RESTORE A DISMISSED APPEAL UNDER ORDER 8 RULES 18 AND 20 OF THE COURT OF APPEAL RULES 2007
What this court is expected to do only is to exercise its discretion looking at his application, for good and sufficient cause if it is grantable. The scope of the reviewing of the exercise of discretion is subject to several factors that is the subject matter, the authority in which the exercise of the discretion is vested, the purpose, the material available to the court and the particular circumstances in which the discretion is to be exercised. The Supreme Court in the case of Christian S.I. Iwufi Vs Federal Commissioner for Establishment and Anor. (1985) 4 S.C (Pt. 21) at pp 124 – 125. See: – also (1985) 1 NWLR (Pt. 497) 520 stated as follows:- “It is the duty of any court, subject to the provisions of the constitution or any contrary rule of court, to make any order which it considers necessary for doing justice between the parties before it. This discretionary jurisdiction has always been exercised by the courts in the interest of justice without question. The exercise of discretion is a judicial act and is expected to be exercised judicially namely in accordance with recognized and established principles.” On the exercise of discretion by court, also see:- Maxwell Vs. Keun (1928) I.K.B. 645; Samson Awoyale Vs. Joshua Ogunbiyi (1985) 10 SC 35 at 67; Victorial Anisiuba Vs. Anthony Emodi (1975) 2 SC 9 at 13; Chief James Ntukidem & Ors Vs. Chief Asuquo Oko & Ors (1986) 12 S.C. 126 at pp 190 – 191; Taiwo Ajani Vs. Situ Giwa (1986) 3 NWLR (Pt. 796) at pp 808 and 809. The Rules provides for the exercise of the discretion for good and sufficient cause. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
OKEBAYODE ABORODE – Appellant(s)
AND
CHIEF AMUSA TORIOLA AFOLABI & 4 ORS – Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Ruling): On the 8th of February, 2011, when this matter was called up for the hearing of the Motion on Notice, learned counsel to the Appellant/Applicant, O. Uwawah Esq., moved the court on his motion dated 14th May, 2010, filed same day. The motion which was brought under Order 7 Rule 10 (1) and order 8 Rule 20 (1) of the Court of Appeal Rules 2007. The learned counsel on behalf of the Appellant/Applicant had sought for the following orders:-
(1) An order restoring this Appeal which was dismissed on the 5th day of October, 2009 back to the cause list of the court.
(2) An order extending the time within which the Appellant/Applicant is to compile and transmit the Records of Appeal in suit No. HER/22/06 from the High Court of Oyo State to this court.
(3) An order deeming the already compiled transmitted and served Records of Appeal with Appeal No. CA/I/164/09 as properly compiled transmitted and served.
(4) An order extending the time within which the Appellant/Applicant is to file his Applicant’s brief in this case.
(5) An order deeming the Appellant’s brief already filed and served as properly filed and served.
Learned counsel to the Appellant/Applicant had sought reliance on the facts deposed on the 24 paragraphs affidavit which accompanied the motion on notice, but more particularly reliance is placed on paragraphs 10, 11, and 13 of the affidavit in support.
Paragraph 10 states as follows:-
“That before the return date, the Appellant/Applicant finished the compilation and transmission of the Records of Appeal to this court on 26th day of May, 2009.
Paragraph 11
That upon receipt of the Records of Appeal at the courts Registry it was given appeal No. CA/I/164/09.
Paragraph 13:-
That before the return date, O. Uwawah Esq. learned counsel for the Appellant who is personally handling the matter was bereaved of his mother and had to travel to sapele in Delta State.
Learned counsel to the Respondent M.O. Achugbue Esq. filed a counter affidavit of 6 paragraphs, dated and filed the 3rd November, 2010. He placed reliance on all the 6 paragraphs of the counter affidavit.
In arguing the Appeal, learned counsel to the Appellant/Applicant submitted that the Appellant was served with the 6 paragraphs counter affidavit of the Respondents. It is clear that paragraphs 4 and 5 of the counter affidavit offends the provision of section 88, 89 of the Evidence Act. Court is referred to the following cases: – Abiodun Vs. C.J. Kwara State (2008) All FWLR (pt. 448) 340, 377 – 378 paragraphs G-B.
The facts and Circumstances of the belief of the deponent of the counter affidavit were not disclosed in paragraph 4 thereto. Also affected is paragraph 5 thereto. The court is urged to strike out the affected paragraphs. See Akpokiniovo Vs. Agas. (2004) All FWLR (Pt. 277) 427 at 450 paragraph G thereof. If the two paragraphs above are struck out, nothing would be left in the counter affidavit.
Learned counsel submitted further that, if the 2 paragraphs survives, paragraph 4(G) (H) (1) and (J) of the counter affidavit are in support of the appellant’s application, court is urged to grant the application of the appellant as Prayed for.
Learned counsel to the Respondents, Achugbue Esq., in reply to the arguments of the learned counsel to the appellants/applicants, submitted that, we have filed a 7 paragraph counter affidavit, reliance is placed on all the paragraphs of the counter affidavit but more particularly paragraphs 2 – 7. No exhibit is attached to the said counter affidavit.
Learned counsel further submitted that there is no appeal before this court. The application that the appellant/applicant is trying to bring back is brought out of time, the law requires that leave of court must be sought and obtained before bringing such application. It is settled law that any application to elongate time must be supported by an application by way of leave.
Learned counsel further submitted that the appeal sought to be restored on ground of non compilation of record before the lower court. The Notice of Appeal having been dismissed on that date makes this court functus officio. See: – F.B.N. Plc. vs. T.S.A. Industries Ltd. (2010) 4 -7 SC (Pt. 7) 242 especially at 248 ratio’s 10-30.
Learned counsel further submitted that, the chambers of Uwawah and Co. is presumed in law to be a firm of solicitors and the inability in appearing on the 5/10/09 by the applicant’s counsel another counsel could have represented the firm on that date. The appellant himself should have appeared as a sign of respect to this court, since the counsel could not appear. This court on the 5/10/09 queried me why I was trying to advance reason for the absence of the appellant’s counsel before it, the court asked me to face my own business. My application was heard and granted and the appellant’s Notice of Appeal was dismissed. See: – paragraph 4(K) and 5 (1) of the respondents counter affidavit.
Learned counsel further submitted that whether a court can restore an appeal dismissed under order 8 Rule 18 via Order 8 Rule 20 of the Court of Appeal Rules 2007, this must be exercised judiciously and judicially.
Learned counsel further submitted that, a discretion that is biased in favour of an appellant for stay, but does not adequately take into account the equal right of respondent to justice is discretion that has not been judicially exercised.
Learned counsel further submitted that paragraph 4, and 5 of the counter affidavit do not offend section 88 of the Evidence Act, which is that those paragraphs should contain their source of information. We urge this court to refuse the Applicant’s Application.
By way of a further reply, learned counsel to the Appellant/Applicant Uwawah Esq., submitted that the case of FSB Plc vs. T.S.A Industries Ltd (supra) the issue raised there is quite distinct from the present application. In that case, it was the failure to file the Appellant’s Brief, relisting and restoring of the Appeal which is quite different from the instant application before this court. On the present application. See:- D.Y.S. Trocea Valsesia & Co. Vs. Murphy Osaghie (2008) All FWLR (Pt. 413) 1313 at 1337 paras A-C. We urge the court to grant our application.
On the part of the court, the appeal of Appellant/Applicant on the 5/10/09 was dismissed by this court under Order 8 Rules 18 and 20 of the Court of Appeal Rules 2007.
Order 8 Rules 18 provides-
“If the Registrar has failed to compile and transmit the records under Rule 1 and the Appellant has also failed to compile and transmit the records in accordance with Rule 4, the Respondent may by Notice of Motion move the court to dismiss the Appeal”
Order 8 Rule 20 provides:-
“An Appellant whose Appeal has been dismissed under this Rule may apply by Notice of Motion that his appeal be restored any such application may be made to this court who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”
From the provision of the Rules of this court stated above, where there is the failure on both the Registrar and the Appellant to compile the record of Appeal, the Respondent may by Notice of Motion move the court to dismiss the appeal. The record of the court of the 5/10/09 showed that the respondent did not move the court by filing a motion on notice asking for the appeal to be dismissed. This court acted Suo Motu. Even when the Respondent who admitted in his submission was trying to advance reasons for the absence of the Appellant’s counsel in court, the court asked him to face his own business, and his application which was oral, for the dismissal of the appeal was granted by this court. The Rules provides further that a dismissal made in these circumstances, if the Appellant applies as he did by Notice of Motion as in the instant application, his appeal would be restored subject to the exercise of discretion on the part of the court, for good and sufficient cause. The Appellant/Applicant has met the first requirement of the Rules by filing his motion on notice dated and filed the 14/5/10.
What this court is expected to do only is to exercise its discretion looking at his application, for good and sufficient cause if it is grantable.
The scope of the reviewing of the exercise of discretion is subject to several factors that is the subject matter, the authority in which the exercise of the discretion is vested, the purpose, the material available to the court and the particular circumstances in which the discretion is to be exercised. The Supreme Court in the case of Christian S.I. Iwufi Vs Federal Commissioner for Establishment and Anor. (1985) 4 S.C (Pt. 21) at pp 124 – 125. See: – also (1985) 1 NWLR (Pt. 497) 520 stated as follows:-
“It is the duty of any court, subject to the provisions of the constitution or any contrary rule of court, to make any order which it considers necessary for doing justice between the parties before it. This discretionary jurisdiction has always been exercised by the courts in the interest of justice without question. The exercise of discretion is a judicial act and is expected to be exercised judicially namely in accordance with recognized and established principles.”
On the exercise of discretion by court, also see:- Maxwell Vs. Keun (1928) I.K.B. 645; Samson Awoyale Vs. Joshua Ogunbiyi (1985) 10 SC 35 at 67; Victorial Anisiuba Vs. Anthony Emodi (1975) 2 SC 9 at 13; Chief James Ntukidem & Ors Vs. Chief Asuquo Oko & Ors (1986) 12 S.C. 126 at pp 190 – 191; Taiwo Ajani Vs. Situ Giwa (1986) 3 NWLR (Pt. 796) at pp 808 and 809.
The Rules provides for the exercise of the discretion for good and sufficient cause. The Respondent’s counsel in his reply stated that on the 5/10/09, he wanted to advance before this court the reason that accounted for the absence of the Appellant/Applicant’s counsel in court, but was asked by the court only to mind his own business in court. If this court had allowed him to speak, it might have accounted for good and sufficient cause.
However, paragraph 13 of the Appellant/Applicant’s Affidavit in the opinion of this court alone may constitute a good and sufficient cause paragraph 13 provides:-
“That before the return date, O. Uwawah Esq., learned counsel for the Appellant who is personally handling the matter was bereaved of his mother and had travel to Sapele in Delta State.”
In conclusion therefore this court has ruled that the Appellant/Applicant’s Application, has satisfied the requirement of Order 8 Rule 20 of Court of Appeal Rules 2007, and hereby granted his Motion on Notice dated and filed the 14th of May, 2010.
It is further ordered that the Appellant/Applicant’s Appeal with Appeal No. CA/1/164/09 which was dismissed by this court on the 5th of October, 2009 is restored back to the cause list of this court. No cost is awarded.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the opportunity of reading in advance the lead Ruling of my learned brother, Bage, J.C.A. just delivered, I agree with his reasoning and conclusion reached. I also abide by the order/s contained in the lead Ruling including order on costs.
MODUPE FASANMI. J.C.A.: I have had the privilege of reading in advance the ruling of my learned brother, S. D. Bage, J. C. A. I am in complete agreement with his reasoning and conclusion. The application succeeds and I also abide with the consequential order made. No order as to cost.
Appearances
O. Uwawah Esq., For Appellant
AND
M.O. Achughue For Respondent
